Volume 108

Discrimination, Mandatory Arbitration, and Courts

by Erik Encarnacion

Members of Congress have recently proposed legislation that would effectively ban the commercial practice of requiring individuals to arbitrate claims of sexual harassment. Congress previously tried in the 1990s to prohibit mandatory arbitration of all discrimination claims, not just those grounded in sexual misconduct. At first glance, these attempts to adopt discrimination-specific reforms appear unprincipled. After all, the criticisms of mandatory arbitration invoked to oppose arbitration of discrimination claims typically apply equally to all claims, not just those involving discrimination. But this Article argues that, regardless of the merits of broader attempts to rein in mandatory arbitration, discrimination-specific prohibitions have a compelling but overlooked justification. Specifically, rectifying wrongful discrimination requires empowering victims to vindicate both their status as equal citizens as well as the status of the groups to which they belong, in the face of challenges to those statuses. Because equal status—both of individuals and their groups—must be guaranteed in part by the public, victims must be empowered to demand reaffirmation of that status by an authoritative public institution. And because a person’s status concerns her treatment across a range of social and institutional settings, fully vindicating that status potentially requires reaffirming her equal status in public. Confidential, private arbitration cannot accomplish these ends. But courts can. Given problems facing existing arguments against mandatory arbitration, the need for a new status-based approach is all the more press- ing in the wake of the #MeToo movement

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